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M8 { THE WAR AMENDMENTS. 


BY ALBERT E. PILLSBURY. 


In the January number of this Review appeared an article de- 
signed to show that the Fifteenth Amendment never became, is 
not and never has been a part of the Federal Constitution, or 
of any force or effect in the law of the land. As the reasons 
there assigned for this novel, if not startling, proposition ir- 
resistibly draw after them the inference that the Thirteenth 
Amendment and parts, at least, of the Fourteenth are equally 
infirm, this result is accepted by the author of the article, who 
expresses the opinion that these also are a nullity. The con- 

clusion is that a case should be made, “ preferably, although not 
necessarily, in one of the five States which refused to accept this 
so-called Amendment,” to bring the question before the Supreme 
Court of the United States for decision. 

Except for the highly respectable source’from whence this 
proceeds, it could hardly be regarded as calling for serious notice 
or answer. As, however, the judicial standing of the author should 
qualify him to speak with some authority upon a question of 
Federal constitutional law, the importance of the subject will 
justify attention to it. 

; 2 The reason of the supposed invalidity of the Fifteenth Amend- 
ment should be quoted in its own terms. Disclaiming any pur- 
pose to attack the Amendment as not properly ratified by three- 
fourths of the States, the writer says: 

“The question which we would raise is of far graver import in ita 
constitutional aspect. It is, that this so-called Fifteenth Amendment is 
not an amendment, but an addition, to the Constitution; and that, while 
amendments to the Constitution may be enacted by a vote of three 
fourths of the States, in accordance with the provisions for amend: 
ment in Article V of the Constitution itself, yet an addition to the 


Constitution cannot be made, except by unanimous consent of all the 
States, which this Fifteenth Amendment never received.” 


4 THE WAR AMENDMENTS. 


No judicial authority is cited for this distinction between an 
“addition” and an “amendment” to the Constitution, as there 
is none; indeed, it is declared that the question “is here raised 


for the first time,” as undoubtedly it is. The article proceeds: 


“ Addition is something entirely new, and not germane to the original 
instrument: amendment is alteration or improvement of that which in 
some form is already there. The distinction between addition and 
amendment is fundamental, and is very clear to every one. No one 
will claim that they mean the same thing; and it would, therefore, be 
unnecessary to expend effort to show the difference between them.” 


This is taking a great deal for granted. It is familiar knowl- 
edge that the question of amending the Federal Constitution arose 
even before its adoption, and was perhaps the subject of more 
discussion while its ratification was pending before the States 
than the original instrument itself. No sooner was it adopted 
than the process of amendment began. LEHvery one of the fifteen 
amendments has been the subject of the most searching examina- 
tion in the courts, in Congress and in the country. The three 
war amendments have been subjected to a microscopic scrutiny 
that has taxed the intellectual resources of the bar and judiciary 
of the United States. Their validity has been challenged upon 
other grounds; and, as to the Fifteenth Amendment especially, 
legal ingenuity has been racked for the last twenty years to dis- 
cover means of evading it or grounds upon which it could plausibly 
be resisted. But never before has the principle been revealed that 
an “addition ” to the Constitution is not an “ amendment” of it, 
and is of no force or effect unless tried by a parliamentary manual 
and found to be “ germane.” 

The simplest answer to this argument, the one which lies near- 
est at hand, ought to be enough. Article V of the Constitution 
provides for amendment of it. What is “amendment”? The 
standard dictionaries appear to be agreed in defining it, in legal 
terminology, as a change or alteration, by way either of correction, 
excision or addition. There is every reason to believe that this 
has been the universally accepted meaning of that term, until it 
occurred to an ingenious mind that the Fifteenth Amendment is 
not an “amendment” because it is an “addition” to the Con- 
stitution. 

The express limitations imposed upon Article V are of con- 
trolling significance in determining its scope or extent. The 


THE WAR AMENDMENTS. 5 


slavery interests insisted upon putting the slave-trade beyond 
reach of the amending power until 1808, with protection for 
slavery in respect of taxation. ‘lhe smaller States demanded 
security against the greater by perpetual equality of power in the 
Senate. These concessions were made, and these limitations were 
expressly laid upon the provision for amendment. No other 
limitations were laid upon it; and, under the familiar rule of 
judicial construction that the expression of one thing excludes 
any other thing, no other limitations can be implied. There is 
not a word or hint of doubt, in Article V itself or in the debates 
of the Convention, that, saving the express limitations, the Article 
was intended to provide for any change or alteration in the Con- 
stitution which the people, as the source of all political power, 
should see fit to make. It will be seen later that this was clearly 
understood. 

Further, the limitations of Article V are not limitations upon 
the power of the people to amend the Constitution. Article V is 
neither the source nor the measure of that power. The American 
principle of the sovereignty of the people, and of their right to 
institute, abolish or alter their government “in such form as to 
them shall seem most likely to effect their safety and happiness,” 
asserted in the opening words of the Declaration of Independence 
and reasserted in some, if not all, of the State constitutions, was 
not only accepted by the framers of the Federal Constitution, but 
they regarded it as so fundamental that it did not need further 
expression. It is now judicially settled, as was reasonably evident 
from the beginning since it is plainly declared, that the Constitu- 
tion was the act of “the people of the United States” as one 
people, undivided by State lines. By the Tenth Amendment, in- 
deed by necessary intendment without it, the whole power of 
alteration of the Federal Government was reserved to the people, 
acting through their constitutional agencies. Article V is not a 
reservation of the inherent power of amendment, which did not 
need to be expressly reserved. It is a provision of certain methods 
for the orderly exercise of the power, and nothing more. 

The Constitution of the United States is not to be interpreted 
by the rules which govern the acts of private parties; much less 
by the parliamentary code of a legislative body. The construction 
of the instrument of government must be as broad as its scope 
and operation are far-reaching. The assertion of this principle 


n THE WAR AMENDMENTS. 


began in the earliest times, with Chief-Justice Marshall, who 
called attention to the sparing use of limiting terms in the Con- 
stitution, and pronounced a solemn admonition against a narrow 
or restrictive construction. “We must never forget,” he said, 
“that it is a constitution we are expounding.” ‘This rule of con- 
struction long ago passed beyond possibility of dispute. 

If the question whether the Fifteenth Amendment is “ ger- 
mane” to the Constitution could seriously be discussed, it would 
not be diliicult to show that it is germane. If the Fourteenth 
Amendment is valid as part of the Constitution, the Fifteenth is 
clearly germane, as it is directly in line with and supplementary 
to the first and second clauses of the Fourteenth. But, apart from 
this, the question whether an amendment is germane to the in- 
strument amended is not a question of the relation of words, but 
of purposes. What are the purposes of the Federal Constitution ? 
Lhey are authoritatively declared, in language so felicitous that 
it has become classic, in the preamble, where the people of the 
United States have said that their Constitution is established “ to 
form a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defence, promote the general 
welfare and secure the blessings of liberty to ourselves and our 
posterity.” Unless the amendment is so foreign to all these pur- 
poses that it can bear no legitimate relation to any of them, it 
is germane to the Constitution. And, if this question can be 
raised, it cannot be determined by any tribunal of less authority 
than the people themselves, in whom alone, acting through their 
representatives, is vested the power to amend the Constitution, to 
determine the occasion for amending it, and the character and 
scope of the amendment. 

The only claim of anything in the nature of authority for the 
alleged distinction between an “ amendment” which can and an 
‘addition ” which cannot be made to the Constitution, rests upon 
the title under which the first ten amendments were submitted to 
the people by the First Congress in 1789. It is said that they 
were ‘‘ proposed for adoption under the title of ‘additions and 
amendments’ to the Constitution,” so that “evidently it was 
recognized that there was a sharp distinction between additions 
and amendments, and that the one did not include the other.” __ 

If any argument is to be drawn from this title, it is a simple 
process to show that it is directly the other way. The joint 


THE WAR AMENDMENTS. ve 


resolution of Congress submitted twelve articles together, all “as 
Amendments to the Constitution of the United States,” under 
the title or heading of “ Articles in Addition to and Amend- 
ment of the Constitution of the United States.” All of the 
articles being thus indiscriminately declared to be “in Addi- 
tion to and Amendment of the Constitution,” if it was in- 
tended to distinguish between some of them as “ additions” and 
others as “‘ amendments,” where is the distinction to be found, or 
how is it to be known? Which of the articles are “ additions,” 
and which “amendments”? The entitling clause, far from afford- 
ing any means of making such a distinction, is plainly inconsistent 
with it. It conclusively shows that the words “ addition ” and 
“amendment ” were not used by way of distinction, but as synony- 
mous and interchangeable terms. The only meaning which the 
heading will bear, whether regarded as the ordinary expression of 
common men, or critically, in its precise syntactical significance, is 
that all of the articles which were ratified are additions to, and 
all of them are amendments of, the Constitution, without dis- 
tinction among them. 

If the argument sought to be drawn from this title proves any- 
thing, it proves too much. If the authors of the amendments 
actually did recognize the distinction between “ addition” and 
‘“‘amendment,” and meant by “ addition” to describe something 
different from “ amendment,” it follows that they actually re- 
garded some of the articles, though we do not know which, as 
being additions to the Constitution, and not amendments of it. 
In other words, the Congress, and its constituents, alike regarded 
“ additions ” to the Constitution as being within the provision for 
amendment, if any such distinction ever occurred to them. The 
truth undoubtedly is that it never did occur to them; but those 
who assert the contrary may reasonably be required to accept the 
results of their own reasoning. ‘There is, in fact, no reason to 
suppose that the title was drawn with any special care, or was 
designed to have any particular significance. It need only be 
added that these “additions ” to the Constitution were made in 
precise conformity to the method and procedure prescribed by 
Article V; which shows also that “additions” to the Constitu- 
tion were unquestioningly regarded as directly within the scope 
and purpose of the Article which provides for amendment. 

There are more conclusive answers to the question whether the 


8 THE WAR AMENDMENTS. 


Fathers of the Constitution believed that an “ addition ” to it is 
beyond the scope of the provision for amendment, and one of 
them is directly invited by the article under review in suggesting 
the query whether, if Hamilton or Madison had been asked to 
explain in the “ Federalist ” the scope of Article V and if any- 
thing could be added to the Constitution which three-fourths of 
the States might think proper, and had answered that inquiry 
in the affirmative, there would have been any chance of the adop- 
tion of: the Constitution? A casual examination of the “ Fed- 
eralist ” is enough to furnish the answer. In Number XLIX,* 
Madison says: 

“As the people are the only legitimate fountain of power, and it is 
from them that the constitutional charter, under which the several 
branches of government hold their power, is derived; it seems strictly 
consonant to the republican theory to recur to the same original au- 
thority, not only whenever it may be necessary to enlarge, diminish or 
new-model the powers of government, but also whenever any one of the 
departments may commit encroachments on the chartered authorities 
of the others.” 

In Number LXXXV, Hamilton points out that it will be less dif- 
ficult to obtain amendments of the Constitution after its adoption 
than to recast the work of the Convention before adoption; and 
he says: 

“Nor, however difficult it may be supposed to unite two-thirds or 
three-fourths of the state legislatures in amendments which may af- 
fect local interests, can there be any room to apprehend any such 
difficulty in a union on points which are merely relative to the general 
liberty or security of the people. We may safely rely on the disposition 
of the state legislatures to erect barriers against the encroachments 
of the national authority.” 

Not only was the possibility, to Hamilton not unwelcome, of 
“encroachments of the national authority” plainly before him, 
but in this very passage he was meeting an argument based upon 
it, as we know from the history of the discussion. If he under- 
stood or believed that the Constitution permitted no extension of 
the Federal field of power by future amendment, this would have 
been the appropriate and conclusive answer, and it would have 
been Hamilton’s answer. 

The “ Federalist” essays were in the hands of every statesman 
and publicist of the time, accepted then and ever since as the 


* Numbered XLVIII in some editions. 


THE WAR AMENDMENTS. 9 


highest authority on the subject except the debates in the Con- 
vention itself. The debates had not then been given to the world. 
The views of Hamilton and Madison as expounded in the “ Fed- 
eralist ” were the views of the Constitution under which it was 
accepted by the people. But we do not need to know what Hamil- 
ten or Madison thought of this question. We know what the 
people thought of it, and what they did about it. The question 
whether additions can be made to the Constitution was substantial- 
ly settled in 1791, by the adoption of the first ten amendments. 

It is without force to say that these additions were all in re- 
straint of Federal power. If the Constitution can be altered, it 
can be altered in either direction. There is nothing in it, or in 
the contemporaneous discussion of it, or In any subsequent dis- 
cussion or judicial exposition of it for one hundred and twenty 
years, to warrant the belief that the Federal powers cannot be 
extended by addition if the people see fit to extend them. In the 
controversy provoked by the three war amendments at the time 
of their adoption, every reason which legal or political ingenuity 
could conceive was arrayed against them, but not this reason. 
The war amendments have always been judicially recognized, and 
in some cases expressly declared, to be additions to the Constitu- 
tion, in derogation of rights theretofore held by the States, as 
plainly they are. But, as the court says, “A State cannot dis- 
regard the limitations which the Federal Constitution has ap- 
plied to her power. Her rights do not reach to that extent... . 
Every addition of power to the General Government involves a 
corresponding diminution of the governmental powers of the 
States.” The Fifteenth Amendment has on several occasions 
been judicially enforced, and never, in the numerous cases where 
it is considered, has there been intimated the remotest doubt of its 
validity. 

Neither is it to the purpose to say that the first ten amendments 
were ratified by all the States, or that “addition requires unani- 
mous consent of the States, while amendment may be made and 
become effective by a vote of three-fourths of the States.” It is 
admitted that the assent of three of the States does not appear 
in the Federal archives, and it was not needed. There is no 
ground in the Constitution for any distinction between the assent 
of three-fourths and unanimous assent. No such thing can he 
read out of it or into it. No method is expressly provided, even 


10 THE WAR AMENDMENTS. 


by unanimous action, for abrogation of the provisions of Article 
V that slavery is to have a certain protection, and that the States 
shall be equal in the Senate. Doubtless, they could be or could 
have been annulled by unanimous action of the States; but, if 
this should be done, plainly it would be an amendment of the 
Constitution, and not an addition to it. Thus the only case calling 
for unanimous consent which can arise out of any constitutional 
provision is not the case of an addition, but of an excision. 

It is enough to say that the Constitution does not contemplate 
the unanimous consent of the States to anything, nor any con- 
tingency requiring such consent. ‘he Constitution stands upon 
the rule of the majority, and every State which comes into the 
Federal Union is bound by the action of the constitutional ma- 
jority, exactly as the individual citizen is bound by it in the or- 
dinary operation of government. ‘This was noticed by Hamilton 
in the Convention, and must have been understood then as it has 
been universally understood ever since. 

It is said that, if additions can be made to the Constitution, 
it will be possible to overthrow the Federal system and establish 
a centralized despotism. This does not necessarily follow, but 
this very possibility was urged against Article V in the Conven- 
tion, and that Article was adopted in the face of it. If it were 
a question of possibilities, it might well be asked: Would it be 
possible to believe that this acute and enlightened body of men, 
engaged as they were in creating a Federal government of real 
powers for want of which the Confederation had proved impotent 
and worthless, intended to put the people in such a position that 
they could never again extend its limits, to any extent or under 
any conditions, for all time to come, or to put them in the attitude 
of abdicating forever a substantial part of the political power of 
which they were the depositary, and that this was done without 
disclosing or indicating by a single word that it was being done? 
lf this is true, the judgment which the world has pronounced upon 
the Convention of 1787 will have to be reversed. 

We now know that it is not true. The debates in the Federal 
Convention are the final and conclusive evidence. The accepted 
canon of construction being that a constitution means what it 
was understood and intended to mean in its inception, we have 
only to turn to the Madison Papers to settle the question. 

The discussions which led up to Article V, while comparatively 


THE WAR AMENDMENTS. 11 


brief, disclose enough for the purpose. Some members saw no 
necessity of any provision for amendment. To them Madison 
and Randolph replied that the plan was sure to be found defective, 
as the Confederation had been, and it was better to provide for 
amendment in a constitutional way than trust to chance or vio- 
lence. The first reported draft provided for amendment on ap- 
plication to Congress by two-thirds of the States. Gerry objected 
that this would enable two-thirds of the States to make innova- 
tions which might altogether subvert the States. Hamilton did 
not object to this; it was no more objectionable to subject the 
whole people of the United States to the majority voice than the 
people of a State; but he opposed the draft as confining the initia- 
tive power to the States, which he thought should be extended also 
to the Congress. Sherman moved an amendment to this effect, 
but calling for the consent of all the States, which was opposed 
and three-fourths was substituted, nem. con. Mason objected to 
the draft finally reported by the Committee on Style as prac- 
tically leaving the whole power in Congress, so that no “ proper ” 
amendment could ever be obtained if the Government should be- 
come oppressive. ‘To meet this, Gouverneur Morris and Gerry 
proposed to require the Congress to call a convention whenever 
two-thirds of the States should apply for one, which was agreed 
to. Sherman now opposed any provision for amendment, as it 
might be fatal to particular States by abolishing them altogether 
or depriving them of an equal voice in the Senate; and he moved 
to strike out the whole Article. This was voted down; and, the 
smaller States being reassured by the proviso, moved by Morris, 
that no State should be deprived of its equal voice in the Senate, 
and the slavery interests having already been placated, the Article 
passed into its final form. 

It thus appears that the danger of additions to the Federal 
power, even so great as possibly to subvert the States, was di- 
rectly brought before the Convention by several of its most in- 
fluential members. Their apprehensions were disregarded. The 
view of one party was that the amending power of the States was 
liable to be so exercised as to unduly cut down the Federal Govern- 
ment, and of the other, that the amending power of Congress was 
liable to be exercised to the detriment or even the overthrow of the 
States, and there were some who thought that this result might 
follow from any provision for amendment, in any form. Never- 


12 THE WAR AMENDMENTS. 


theless, the Convention, with all these hazards in view, deter- 
mined to give both Congress and the States the power to initiate 
amendments. It was done deliberately, upon the open and un- 
contradicted assumption that the amending Article was all-em- 
bracing and was subject to no limitations except those which were 
expressly imposed. By no word or sign is there any indication of 
a purpose to exclude future additions to the powers of the Federal 
Government from the scope of amendment, or of any understand- 
ing that they are excluded. 

So much for the legal question. The article under review is 
unsparing in denunciation of the “so-called” Fifteenth Amend- 
ment. It is said to have been “the source and cause of untold 
calamity to our country”; it has “greatly injured our Aryan 
race and seriously threatened the stability of our Aryan institu- 
tions”; it was “conceived in iniquity and begotten to subserve 
grossly partisan purposes”; it is “a fanatical tenet,” “read into 
the organic law so far as it was possible for the fanatics to read 
it,’ and “a perpetual source of irritation and annoyance to all 
true lovers of their country ”; and, finally, “it is time that it 
should be wholly expunged from the statute- book by proper 
judicial construction.” 

The main purpose of the present article has already been ful- 
filled, but something is due to the truth of history. Such asser- 
tions as these cannot be justified, and they might, perhaps, be 
safely left to their own extravagance. Inasmuch as the Fifteenth 
Amendment has practically been nullified in the States most af- 
fected by it, and as Congress has yet manifested no disposition 
to enforce the representation clause of the Fourteenth, there is 
hardly occasion for the degree of excitement here betrayed over 
a question which, in this aspect, may be regarded as academic 


< 


' will have to be dealt with; and this not merely in the interest of 
the negro, but of the white man, in order to preserve an equal 
balance of political power between the States which have dis- 
franchised the negro and the other States of the Union. By the 
process of disfranchisement that balance is now thrown so far 
_ off its equipoise that a single vote cast in the former States off- 
' sets, in the Federal Government, two votes cast in the latter. 
The question is not whether the negro shall be the equal of the 


THE WAR AMENDMENTS. 13 


white man, but whether every white man, in any State, shall be 
politically the equal of every other white man in any other State. 

The Fifteenth Amendment can be enforced without danger of 
negro supremacy in any State of the Union. All that is needed, 
and all that the extremest political opinion of any part of the 
country ever has demanded, is an honest and impartial applica- 
tion to both races alike of such suffrage laws, howsoever exclusive, 
as any State may choose to adopt. The evils ascribed to the 
Fifteenth Amendment are not due in any degree to that source, 
but to the refusal of the people of the States most affected, who - 
have no objection to the negro as a negro, to accept him under 
the Fourteenth Amendment as a citizen. There is every reason to 
believe that, if the Fourteenth Amendment had been fairly re- 
ceived and observed, the Fifteenth never would have been enacted 
or thought of. 

The proceedings in the adoption of the Fifteenth Amendment 
are denounced as “ grossly improper” and “ disgraceful in the 
extreme,” “a history of infamy and the most disgraceful page 
in our annals,” and it is said that the States which were com- 
pelled to accept the so-called carpet-bag legislatures “at the 
point of the bayonet” may well be justified in repudiating their 
action. It is judicially settled that any claim of coercion of a 
State cannot be entertained by the courts. But to this assertion of 
a political or moral justification for repudiating the Fifteenth 
Amendment, it may be permissible to reply that the Federal Con- 
stitution as an entirety is at present in force in eleven States of 
the Union only “at the point of the bayonet,” since its authority 
had to be re-established there by the military power of the United 
States. Unless this is a reason for annulling the whole Constitu- 
tion, it does not appear to add anything to the case against the 
Fifteenth Amendment. 

At this distance from the reconstruction period, and after long 
and systematic perversion of the facts, there is so much misappre- 
hension or positive ignorance of the truth that it is worth recall- 
ing. It was within the power of the dominant party to control 
the reconstructed States, if this had been its purpose, without 
the aid of a negro vote. This was not its purpose. The Four- 
teenth Amendment went no farther than to make the negro a 
citizen, leaving him to be dealt with by the States as they might 
see fit; in the hope and belief that he would be fairly treated, 


14 THE WAR AMENDMENTS. 


and that some such scheme as President Lincoln proposed, of mod- 
erate and gradual extension of the suffrage by impartial tests to 
the best of the negro race, would preserve order under white 
supremacy and work out a peaceful and satisfactory solution of 
the problem, as it would have done if adopted. These liberal terms 
were flung back upon those who proposed them. The contemptu- 
ous rejection of the Fourteenth Amendment by every State of the 
late Confederacy, accompanied by a system of legislation remand- 
ing the negro to servitude in fact if not in law, betrayed a pur- 
pose toward him which could not be indulged consistently with the 
honor or the safety of the country. It also raised the direct issue 
whether the terms of reconstruction should be prescribed by those 
lately in rebellion, or by those who had remained loyal to the 
Union. To this question there could be but one answer. This, and 
this alone, brought on the Fifteenth Amendment, which was, in 
simple truth, no more than the last necessary step in the process of 
suppressing rebellion. It does not confer the suffrage upon a single 
negro. It forbids discrimination against him as a negro, making 
suffrage to that extent impartial, but not universal. Every assault 
upon it is evidence of a desire and purpose to exclude the negro 
from the suffrage, whatever his character or qualifications, solely 
because of his color, while admitting to it every white man, how- 
ever ignorant, worthless or depraved, and retaining, in open dis- 
regard of the Fourteenth Amendment, the whole share of political 
power of which the disfranchised negroes are despoiled. 

The dream of annulling the Fifteenth Amendment by judicial 
decree will never be realized, but the political question will be a 
source of danger so long as it is left unsettled. If the people con- 
tinue to ignore the injustice to the negro, they will not always 
tolerate the injustice to themselves. In the event of a Presidential 
election turning upon the thirty-odd electoral votes now unlawfully 
controlled by the white South, is there any assurance, or is it 
likely, that the party in power would surrender possession of the 
government to a claimant under such a title? A controversy so 
arising, precipitated under such conditions, would shake the Fed- 
eral structure to its foundations. To allow the country to drift 
into such a situation is forbidden alike by patriotism and states- 
manship. 


UNIVERSITY OF ILLINOIS-URBANA 


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